M.M. v. Royal & Sun Alliance Insurance Company of Canada, 2020 CanLII 101834

Citation: M.M. vs. Royal & Sun Alliance Insurance Company of Canada, 2020 ONLAT 18-007290/AABS

Released: December 3, 2020

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

M.M.

Appellant

and

Royal & Sun Alliance Insurance Company of Canada

Respondent

DECISION AND ORDER

SECTION 7 OF THE LICENCE APPEAL TRIBUNAL ACT, 1999

VICE-CHAIR: D. Gregory Flude

Appearances: For the Appellant: Alex Nikolaev, Counsel For the Respondent: Lora Castellucci, Counsel

Heard: In Writing

REASONS FOR DECISION AND ORDER

SECTION 7 OF THE LICENCE APPEAL TRIBUNAL ACT, 1999

OVERVIEW

1On January 24, 2020, I released my preliminary issue decision in this matter holding that the applicant, M.M., had filed his application to dispute the respondent’s, Royal & Sun Alliance Insurance Company of Canada (“Royal”), denial of his entitlement to a non-earner benefit (“NEB”) beyond the two-year limitation period set out in s. 56 of the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg 34/10 (the ''Schedule''). I gave the parties the opportunity to make submissions on s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “LAT Act”). Having received and reviewed those submissions, I conclude that s. 7 of the LAT Act does not apply.

FACTS AND FINDINGS IN EARLIER DECISION

2A brief review of the facts and findings as set out in my January 24, 2020 decision is in order.

3M.M. was injured in a motor vehicle accident on April 17, 2016. He filed an OCF-1, Application for Accident Benefits, with Royal on May 2, 2016. He seeks a NEB. A prerequisite to entitlement to a NEB is the filing of an OCF-3, Disability Certificate. He did not file an OCF-3 with his OCF-1, so on May 16, 2016, Royal, through its adjuster Crawford, wrote to him stating that he was not entitled to a “specified benefit,” which phrase the letter explained included a NEB. The letter made it clear that Royal was denying his entitlement to a NEB at that time and outlined the required steps M.M. must take to dispute the denial.

4In several subsequent letters, Royal invited M.M. to send in the required documentation. Other than an abortive attempt to file an OCF-3 in December 2017, M.M. did not send in the required documentation.

5On the evidence before me, I held that the date of denial was May 16, 2016. The two-year limitation period expired on May 16, 2018. M.M. filed his Application for Dispute Resolution with the Tribunal on August 10, 2018. I held that he had missed the limitation period.

SECTION 7 OF THE LAT ACT

6M.M. relies on section 7 of the LAT Act to give me authority to exercise discretion to extend the limitation period. Royal argues that I do not have such discretion because s. 7 does not capture limitation periods set out in a regulation and the Schedule is a regulation. It points me to two recent decisions of the Tribunal in support of that submission: S.S. v Certas Home and Auto Insurance Company, 2016 CanLII 153125 (ON LAT) (Reconsideration) (“S.S. v Certas”) and M.N. v Aviva General Insurance Company, 2019 CanLII 119731 (ON LAT) (“M.N. v Aviva”), both decisions of Adjudicator Neilson.

7Both parties agree that if s. 7. gives me discretion to extend the limitation period, then, in exercising that discretion, I should apply the test set out by the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (“Manuel”). M.M. addresses Manuel obliquely as the cases he relies on cite and apply the test.

DOES S. 7 OF THE LAT ACT APPLY TO LIMITATION PERIOD IN THE SCHEDULE

8Section 7 of the LAT Act states, in part:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal …, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited. [emphasis added]

9In S.S. v Certas and M.N. v Aviva, Adjudicator Neilson was asked to consider the use of the words “by or under any Act” in s. 7. The respondents in each case submitted that these words did not include limitation periods set out in regulations such as the Schedule. In each case, the applicants submitted that since regulations are subordinate legislative instruments promulgated only if authority to do so is contained in an Act, then regulations were caught by the words “under any Act.” The applicants’ interpretation had found favour with the Executive Chair of the Tribunal in A.F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 87546 (ON LAT). Adjudicator Neilson rejected the Executive Chair’s approach, pointing out that crucial aspects of applicable statutes had not been argued before the Executive Chair.

10Adjudicator Neilson pointed to s. 3 of the LAT Act. Section 3 uses the phrase “by or under any Act” but it goes on to add “or regulation.” In her view, the reference to regulations in s. 3 and the exclusion of regulations from s. 7 indicated an intention by the Legislature to limit the application of s. 7 to limitation periods in Acts. She noted that the legislative amendments that transferred jurisdiction for the resolution of no-fault automobile insurance benefits disputes to the Tribunal specifically included an amendment to the Insurance Act, R.S.O. 1990 c. I.8 to remove the limitation period, leaving only the limitation period in the Schedule. She found that, had the Legislature intended to extend the s. 7 discretion to regulations, it would have done so at that time by the simple expedient of adding “or regulation” to s. 7. She ultimately concluded that the Tribunal does not have discretion to extend the limitation period in the Schedule.

11I find the reasoning in S.S. v Certas and M.N. v Aviva persuasive, both because of its internal consistency and because of its application to the broader jurisdiction of the Tribunal. In addition to jurisdiction over automobile insurance benefits disputes, the Tribunal deals with appeals under 32 other statutes. I am unaware of any of those 32 statutes where the time limit to appeal to the Tribunal is not in the enabling Act itself. The appeal periods set out in those Acts tend to be short. In Manuel, cited above, the appeal period was 15 days. It is to be expected that a number of factors may militate against filing a timely appeal and it is quite reasonable for the Tribunal to have the ability to examine those factors and determine if the justice of the case supports an extension of time to appeal. That argument is more difficult to support where the applicant has two years to appeal. It is, of course, open to applicants to sit on their rights until the last minute, but they run the risk of forfeiting important rights if they do not act within two years. Against this backdrop, it appears clear that the Legislature’s action of moving the limitation period from the Insurance Act to the Schedule and its omission of the words “or regulation” in s. 7 of the LAT Act was intentional.

12Based on the above, I find that s. 7 of the LAT Act does not authorize the exercise of discretion to extend the limitation period in s. 56 of the Schedule.

THE MANUEL TEST

13Despite my finding regarding s. 7, I will consider the test set out in Manuel. The onus is on M.M. to satisfy me that the justice of the case favours an extension of the time to appeal. I find that M.M. does not meet that onus.

14Manuel was an appeal to the Divisional Court from a decision of this Tribunal to not extend the time limit to file an appeal from a Notice of Proposal to Revoke issued by the Registrar under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B (“MVDA”). Manuel had 15 days to file his request for a hearing. He filed three days late. The Tribunal declined to extend the 15-day time limit and he appealed that decision to the Divisional Court.

15Speaking for a unanimous court, Justice Harvison Young was at pains to state that the overriding factor is the justice of the case. In analysing the justice of the case, she applied four factors to be considered as a guideline. The factors were not to be treated as a checklist where failure in one area was fatal. Rather, the factors were to be weighed where supportive factors could balance areas of weakness to ultimately determine the justice of the case. The four factors are:

i. The existence of a bona fide intention to appeal;

ii. The length of the delay;

iii. Prejudice to the other party; and,

iv. The merits of the appeal.

Bona Fide Intention to Appeal

16M.M.’s submissions about his intention to appeal are set out in paragraphs 1 through 7 of his submissions. They do nothing to explain his inactivity until filing his appeal in August 2018. They break down to this. He believed that Royal had received the OCF-3 on December 4, 2017 and took no action because, he says, he was waiting for Royal to contact him. He did nothing proactive to assert his rights between December 2017 and the expiration of the limitation period on May 16, 2018, a period of approximately 6 months.

17There were actions that M.M. could, and should, have taken to advance his claim. As Royal points out, the Schedule required Royal to respond to an OCF-3 within 10 days of receipt. M.M. was represented during this period by counsel, who must be taken to be aware of the Schedule’s provisions. Thus, by the end of 2017, M.M. should have been enquiring why he had not heard from Royal concerning his OCF-3. He did nothing.

18I find there is little to no evidence of a bona fide intention to appeal.

The Length of the Delay

19M.M. has cited three cases for the proposition that the Tribunal has routinely extended the time limit in case where the delay is longer than 3 months: L.R. v. RSA, 2019 2019 CanLII 76846 (ON LAT) (“L.R.”), K. T. v. Echelon, 2019 2019 CanLII 94052 (ON LAT) (“K.T.”) and G.B. and Allstate, 2018 CanLII 143515 (ON LAT) (“G.B.”). These cases are distinguishable. In the first two cases, the applicants were found to lack capacity to retain and instruct counsel. In the third case, there was extensive correspondence between the applicant’s counsel and the insurer leading the applicant to believe that the insurer would not enforce the two-year limitation because of a pending CAT determination. None of those factors are present here.

20Harvison Young J. addressed delay in Manuel in applying the four factors. She noted that the delay was only three days; however, she pointed out that if the length of the delay was the governing factor, and short delays always resulted in an extension, then the limitation period becomes meaningless. The Legislature established a limitation period for a purpose, and it is to be respected, subject only to the discretion in s. 7 that should be used sparingly.

Prejudice to Royal

21I find that there is a high degree of prejudice to Royal. M.M.’s chiropractor determined in late 2017 that M.M. met the test for a NEB. By not launching his appeal on time, Royal has been denied the opportunity to arrange for medical examinations sufficiently close to the chiropractor’s examination to meaningfully test it. By not receiving notice of a claim for NEB until the appeal was filed in August 2018, considering a reasonable time to set up insurance medical examinations, Royal would not be in a position to test M.M.’s assertions of a complete inability to live a normal life for over a year after the preparation of the OCF-3. Clearly this is prejudicial.

Merits of the Appeal

22There is scant evidence that M.M. meets the test for a NEB. It consists of a checkmark in the NEB box on the OCF-3 dated November 30, 2017 with no further explanation and a checkmark indicating the condition is likely to last more than 12 weeks. The OCF-3 also details an extensive medical history, including kidney dialysis three times per week, that would certainly impact M.M.’s pre-accident lifestyle. There is a self-report of changes in lifestyle in a chronic pain report dated March 14, 2018 submitted by M.M. It states:

[M.M.] reported significant changes with his usual activities and social functioning since the subject accident. He noted that he currently limits his activities due to his pain. He indicated that he feels less interested and a loss of pleasure in things that used to be enjoyable. He noted that he is not able to play with his grandkids and is limited in socializing. He reported feelings of frustration in response to the change with his normal routine. He indicated that his son is supportive.

23Whether the totality of this evidence would be sufficient to succeed at a hearing is open to question, but I am prepared to find that there is some evidence that the application has some merit.

Weighing the Factors

24In weighing the factors to determine the justice of the case, I find they fall short. There are no cogent reasons for the delay. The sole justification is a stated belief that M.M. though he had more time to appeal. There is no basis for that belief other than he thought he had delivered an OCF-3. Delivery of an OCF-3 has no impact on the running of the limitation period. Nor is the delay short. It is a delay of 3 months which is not explained away by his understanding that delivery of an OCF-3 would trigger a response from Royal and he would not be entitled to a NEB until June 2018. Royal’s ability to arrange for its own assessors within a reasonable time was also prejudiced by the delay. The appeal has some merit, but, faced with the most demanding test in the Schedule, that is, a complete inability to live a normal life, on the evidence before me, this factor does not weigh heavily.

ORDER

25I have previously found that M.M. filed his application for a NEB beyond the two-year limitation period. I now find that the LAT Act does not confer on me any discretion to extend the time for filing an Application for Dispute Resolution under the Schedule.

26If I am mistaken in my interpretation of the LAT Act, I find that M.M. has failed establish that the justice of the case favours the extension of the limitation period.

27M.M. is barred from proceeding with his claim for a NEB as it was brought beyond the two-year limitation period.